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Civil Procedure > Discovery > Flashcards

Discovery Flashcards

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Civil Procedure 1L flashcards
1
Q

What are the required disclosures?

A
  1. Initial disclosures
  2. Expert witnesses
  3. Pretrial required disclosures
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2
Q

What are the initial disclosures? (4 things)

A
  1. Identities of persons with discoverable information the disclosing party may use to support claims or defenses
  2. Copies or descriptions of documents and things the disclosing party may use to support claims or defenses if in its control
  3. Computation of money relief and documents/ESI supporting it
  4. Insurance coverage
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3
Q

How long do parties have to make initial disclosures?

A

Within 14 days of the Rule 26(f) conference

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4
Q

What do you have to disclose about expert witnesses? (Witnesses who will be used at trial)

A

Identity

A written report prepared by expert witness

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5
Q

What must the expert witness report include?

A
  1. Opinions expert will express;
  2. Bases for expert’s opinions;
  3. Facts used to form opinions;
  4. Expert’s qualifications; AND
  5. Amount of payment to expert
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6
Q

What are pretrial required disclosures?

A

Detailed information about trial evidence including:

  1. Identity of witnesses to testify (live or deposition) AND
  2. Documents/ESI/etc. to be introduced at trial
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7
Q

What information must be given about people identified in initial disclosures?

A
  1. Name
  2. Telephone number
  3. Subjects on which they have information
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8
Q

What happens if a party fails to identify somebody required in initial disclosures?

A

Party cannot use that witness in the case UNLESS the failure to identify was substantially justified or harmless

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9
Q

What are the discovery tools?

A
  1. Depositions
  2. Interrogatories
  3. Requests to Produce
  4. Medical exam (physical or mental)
  5. Request for admission
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10
Q

What are the limits on deposition?

A

Cannot take more than 10 depositions or depose the same person twice without court approval or stipulation

Depositions cannot exceed one day of seven hours unless court orders or parties stipulate

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11
Q

What information must a deponent offer testimony from?

A

Present recollection (No requirement to review files/notes)

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12
Q

How can individuals be identified for deposition?

A

Request identification of the relevant person

Notice the other party and describe matters for examination (other party must bring the right person)

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13
Q

Who can be deposed and how do give notice to that person? (Parties) (Non-parties)

A

Parties: notice of deposition

Non-parties: subpoena

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14
Q

What is the farthest a non-party can be required to travel to have deposition taken?

A

100 miles from where non-party resides or is employed

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15
Q

What is a subpoena “duces tecum”?

A

Bring requested materials

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16
Q

How can you use a deposition be used at trial?

A

Depositions can be used:

  1. To impeach deponent;
  2. For ANY purpose IF deponent is an adverse party; AND
  3. For ANY purpose IF the deponent is unavailable for trial, UNLESS absence procured by party seeking to introduce the evidence
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17
Q

What are the requirements of interrogatories?

A
  1. Can only send to parties
  2. Must answer from information reasonably available
  3. Must respond within 30 days from service
  4. Maximum of 25 questions (including subparts)
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18
Q

What information must an interrogatory be answered from?

A

Information reasonably available to you

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19
Q

How long does a party have to respond to an interrogatory?

A

30 days from service

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20
Q

What is within the requests to produce?

A

Documents and things, including ESI, or to permit opposing party to enter designated property to inspect, measure, etc.

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21
Q

What is ESI?

A

Electronically Stored Information

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22
Q

How long does a party have to respond to a request to produce?

A

30 days from service (same as responding to interrogatory)

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23
Q

What can a party say in response to a request to produce?

A

That the material will be produced OR

Assert an objection

24
Q

What are the requirements for a medical exam?

A

Must get a court order and show:

  1. Person’s health is in actual controversy, AND
  2. Good cause
25
Q

Who can be ordered to undergo a medical exam?

A
  1. A party to the proceeeding, AND
  2. Someone in the party’s custody or legal control
26
Q

What happens if examined person requests the medical report?

A

He waives any privilege concerning testimony about ALL examinations of that medical condition

Will have to produce reports of his own doctors concerning the medical condition

27
Q

What are the requests for admission?

A

Written request that requires somebody to admit or deny a specific comment

28
Q

What are the discovery tools that can only be used on parties?

A

Interrogatories

Request for admission

29
Q

When should you file a subpoena?

A

Whenever you are requesting something from a non-party

30
Q

On whom may requests for admission be served?

A

Parties only

31
Q

How long does a party have to reply to a request for admission?

A

30 days

32
Q

How must a party reply to a request for admission?

A

In writing

By admitting, denying or objecting

33
Q

What happens if a party fails to deny or object in writing to a request for admission?

A

It is counted as an admission

34
Q

What does every signed discovery request certify under threat of sanctions?

A
  1. Discovery is under oath;
  2. Request is warranted;
  3. It is not interposed for improper purpose; AND
  4. Not unduly burdensome
35
Q

What are your continuing obligations throughout and after discovery?

A

Duty to supplement incomplete or incorrect responses to required disclosures, interrogatories, requests for production, or requests for admission

(N.B. Supplements to discovery need not be requested, you still must do them!)

36
Q

What can you discover?

A

Anything relevant to a claim or defense

37
Q

What is considered relevant?

A

Things that are reasonably calculated to lead to the discovery of admissible evidence

(Includes things that are broader than admissible at trial)

38
Q

What is the only signed document not subject to Rule 11 sanctions?

A

Discovery documents (covered by their own sanctions)

39
Q

When is the defendant’s net worth discoverable?

A

When the plaintiff is seeking punitive damages

40
Q

What is the doctrine of proportionality?

A

Court can limit discovery if:

  1. Request is cumulative, or
  2. Burden outweighs the importance of the issue
41
Q

What happens when discovery request lacks proportionality but there is still good cause?

A

Court can order production and allocate the expense between the parties

42
Q

On what bases can you object to discovery?

A
  1. Relevancy
  2. Proportionality
  3. Privilege (incl work product)
  4. Qualified privilege
43
Q

What is work product?

A

Trial preparation materials (materials prepared in anticipation of litigation/with an eye toward litigation)

44
Q

What is qualified work product?

A

Parts of work product that may be discoverable (e.g., witness statements) IF opposing party can show:

  1. Substantial need OR
  2. That the info is not otherwise available
45
Q

What is absolute work product?

A

No part of the work product can be discovered

(e.g., Mental impressions, opinions, conclusions, and legal theories)

46
Q

How can you assert a privilege or work product?

A
  1. Claim the protection expressly AND
  2. Describe the materials in detail in a privilege log

(Privilege log must contain enough detail to allow the judge to determine whether the material is protected)

47
Q

What happens if you inadvertently produce privileged or protected information?

A

Notify other party promptly

Other party must return, sequester, or destroy it, pending decision by the court about whether there has been waiver

48
Q

Under what situations does a court get involved in discovery?

A
  1. When a party seeks a protective order;
  2. When a party provides partial response to discovery request; OR
  3. When there is no response to discovery request
49
Q

When can you seek a protective order?

A

When discovery requests subjects responding party to:

  1. Annoyance;
  2. Embarrassment; OR
  3. Undue burden or expense
50
Q

How do you obtain a protective order?

A

Certify that party tried in good faith to get the info without the court involvement (asked other side for a meet and confer)

51
Q

What are the court’s options for protective order?

A
  1. Deny discovery
  2. Limit it
  3. Permit it on certain terms
52
Q

What happens if the party has only served partial responses?

A

Move for order compelling answers plus costs (incl. fees) for the motion (must certify that you tried to meet and confer)

If order violated: Sanctions and maybe contempt (except for refusing medical exam)

53
Q

What happens if the party has not responded to discovery?

A

Sanctions and attorney’s fees for the motion

No need to compel answers first

54
Q

What are the possible sanctions for discovery non-compliance? (5)

A
  1. Establishment order
  2. Strike pleadings of the disobedient party
  3. Disallow evidence from the disobedient party
  4. Dismiss plaintiff’s case (if bad faith is shown)
  5. Enter default judgment against defendant (if bad faith is shown)
55
Q

Can you get sanctions for loss of ESI?

A

Yes, if it’s lost in routine, good faith operation the system (BUT even then, only in exceptional cases)

Civil Procedure (10 decks)

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